DC DC-OAG-2002-08-13-Opinion-July-2014-Abuse-and-Neglect-Case 2002-08-13

When DC's Corporation Counsel and the head of the Child and Family Services Agency disagree about whether to file or dismiss a child-abuse-and-neglect petition, who has the final say?

Short answer: It depends on the reason for the decision. If the question is whether the evidence is sufficient to win the case, only Corporation Counsel attorneys can make the call (because that decision involves legal judgment subject to the rules of professional conduct). If the question is whether to file or dismiss for non-evidentiary reasons (e.g., the parent has been rehabilitated, social-work resources are better deployed elsewhere), CFSA or other District officials can make the decision, though Corporation Counsel still has to advocate it in court within the Rules of Professional Conduct.

Disclaimer: This is an official DC Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed DC attorney for advice on your specific situation.

Plain-English summary

DC has a divided structure for child-abuse-and-neglect cases. The Child and Family Services Agency (CFSA) does the social-work investigation, and the Corporation Counsel's Family Services Division prosecutes the resulting petitions in DC Superior Court. Section 16-2305(c) of the DC Code says the Corporation Counsel prepares each petition "after an inquiry into the facts and a determination of the legal basis for the petition," and that "[a]ny decision of the Corporation Counsel on whether to file a petition shall be final."

When CFSA and Corporation Counsel disagree about whether to file or dismiss, who wins? The Corporation Counsel's 2002 opinion drew the line by reason, not by office.

The driver was In re J.J.Z., 630 A.2d 186 (D.C. 1993). That consolidated appeal had two parts. In one case, Corporation Counsel moved to dismiss neglect petitions based on a good-faith belief that the proof was insufficient to sustain the charges. The guardian ad litem opposed. The DC Court of Appeals held the trial court must grant Corporation Counsel's motion absent a showing of bad faith, because the prosecutor's discretion to drop unsupportable cases is built into both the statute and the Rules of Professional Conduct (Rule 3.1: no lawyer may bring or defend a frivolous claim).

In the other case, Corporation Counsel moved to dismiss for non-evidentiary reasons (the parent had been rehabilitated since the petition was filed). The Court of Appeals held the trial court there must not defer to Corporation Counsel's discretion. The court had to make its own inquiry, including evidentiary hearings if needed, to determine whether dismissal would serve the best interests of the child.

Stitching the two together, the 2002 opinion concluded:

Filing or dismissal based on the sufficiency of the evidence is a purely legal call. Only Corporation Counsel attorneys can make it, because they are bound by Rule 3.1 and Rule 1.3(a). Allowing a non-attorney CFSA staffer to override would create rules-of-professional-conduct conflicts and would conflict with § 16-2305(c)'s explicit grant of finality to Corporation Counsel on legal judgments.
Filing or dismissal based on non-evidentiary grounds (rehabilitation, family circumstances, parens patriae considerations) is not a purely legal call. CFSA officials can make those decisions. Corporation Counsel attorneys still have to advocate them in court within the Rules of Professional Conduct.

The opinion also noted that the 2000 Child and Family Services Agency Establishment Amendment Act (D.C. Law 13-277) had created a statutory role for the CFSA Director in conducting the preliminary inquiry and recommending whether a petition serves the child's best interest. But § 16-2305(c) preserved the Corporation Counsel's final word on filing.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Office of the Corporation Counsel was reconstituted as the Office of the Attorney General with elected leadership, and the Family Services Division has been restructured several times.

Historical context

The DC child welfare system has been under federal-court supervision since the 1989 LaShawn class action. The 2000 Consent Order in that case redirected resources and created new accountability structures. CFSA was beefed up as a result. The 2002 opinion landed in the middle of that reform window, and helped clarify how the new CFSA Director's enhanced statutory role coexisted with the Corporation Counsel's traditional prosecutorial discretion.

The opinion also addressed a footnote-flagged ethical puzzle that the Rules of Professional Conduct do not directly resolve: whom does a Corporation Counsel attorney represent in a neglect proceeding? Comment 7 to Rule 1.13 says government attorneys represent "the agency acting through its duly authorized constituents." But in neglect proceedings the Corporation Counsel acts in a parens patriae role on behalf of the District as a whole and the children involved, not on behalf of CFSA. The opinion noted that the Corporation Counsel and CFSA had agreed on a dispute-resolution process for handling internal disagreements, but the formal opinion did not resolve the underlying ethical puzzle.

What this meant at the time for CFSA

CFSA staff and the Director could decide, on social-work grounds, that filing or dismissal would or would not serve the child's interests. Their input was statutorily required by D.C. Law 13-277. But they could not override Corporation Counsel's evidentiary-sufficiency calls.

What this meant for Corporation Counsel attorneys

When deciding whether evidence supports a petition, the attorney had to apply Rule 3.1's no-frivolous-claims standard and § 16-2305(c)'s "necessary to protect the community or the interests of the child" standard. That decision could not be delegated to non-attorneys.

What this meant for guardians ad litem

A guardian ad litem could oppose Corporation Counsel's motion to dismiss, but if the motion was based on insufficiency of the evidence the trial court had to grant it absent a showing of bad faith. If the motion was based on non-evidentiary grounds (rehabilitation, etc.), the guardian's opposition would trigger an independent court inquiry.

What this meant for the trial court

Two-track review. Defer to Corporation Counsel on evidentiary calls; conduct independent inquiry on non-evidentiary calls.

Common questions

Q: Can CFSA file an abuse and neglect petition over Corporation Counsel's objection?
A: No. Section 16-2305(c) gives Corporation Counsel the final say on filing. CFSA can recommend filing, and a complainant can request review, but the petition itself is prepared and filed by Corporation Counsel.

Q: Can a guardian ad litem block Corporation Counsel from dismissing a case?
A: Only if the dismissal is based on non-evidentiary grounds. If Corporation Counsel says the evidence is insufficient, the trial court must grant the motion to dismiss absent a showing of bad faith.

Q: What if Corporation Counsel and CFSA simply disagree about whether the evidence is sufficient?
A: The opinion says the evidentiary judgment is for Corporation Counsel attorneys. Internal dispute-resolution processes between the two agencies handle the disagreement administratively, but the legal call is Corporation Counsel's.

Q: What if Corporation Counsel and CFSA disagree about whether to dismiss because of the parent's rehabilitation?
A: This is a non-evidentiary, social-work call. CFSA can make it, but the trial court will conduct an independent best-interests inquiry before granting the dismissal.

Citations

Statutes and rules
- D.C. Official Code §§ 16-2301 et seq., 16-2305(c)
- Child and Family Services Agency Establishment Amendment Act of 2000, D.C. Law 13-277
- DC Rules of Professional Conduct 1.3(a), 1.13 cmt. 7, 3.1
- Reorganization Plan No. 50 of 1953

Cases
- In re J.J.Z., 630 A.2d 186 (D.C. 1993), cert. denied, 511 U.S. 1072 (1994)
- LaShawn v. Williams, Civ. Action No. 89-1754 (D.D.C.) (Consent Order Oct. 23, 2000; Modified Final Order Nov. 18, 1993)

Source

License

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Original opinion text

•

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OFFICE OF THE CORPORATION COUNSEL
JUDICIARY SQUARE
441 FOURTH ST .. N.W.
WASHINGTON. D. C.

20001

IN REPLY REFER TO:

August 13,2002

OPINION OF THE CORPORATION COUNSEL

SUBJECT:

Whether an Agency Other than OCC May
Make Final Decisions Regarding the Filing
Of Petitions in Abuse and Neglect Cases

The purpose of this opinion is to consider whether any statutory requirement or ethical rule
would be violated if a government employee or official other than an attorney employed by the
Office of the Corporation Counsel ("OCC") makes the final decision regarding the filing and
dismissing of petitions in abuse and neglect cases under D.C. Official Code §§ 16-2301 et seq.
In considering this issue, we reviewed the Consent Order, filed October 23,2000, in LaShawn v.
Williams, c.A. No. 89-1754 (D.D.C.), the Modified Final Order, dated November 18, 1993 and
filedin the same case, and the relevant statutory provisions.
SUMMARY
For the reasons described below, we conclude that the Corporation Counsel is not vested by
statute with the exclusive decision-making authority for filing and dismissal decisions based on
grounds other than sufficiency of the evidence, or for other decisions relating to the abuse and
neglect proceeding that do not raise purely legal issues. However, under D.C. Official Code § 162305(c), the Corporation Counsel is vested with the exclusive authority to make the final
decisions with respect to the filing and dismissal of abuse and neglect petitions where this
decision is based on a good faith belief regarding the sufficiency of the evidence.
ANALYSIS
D.C. Official Code § 16-2305(c) expressly recognizes that there may be circumstances where the
Director of the Child and Faniily Services Agency ("CFSA")may reach a conclusion contrary to
the Corporation Counsel with respect to the filing of a neglect petition. Significantly, this
provision specifically grants -the Corporation Counsel the authority to make the final decision
regarding the filing of this petition. It provides that:

[e]ach petition shall be prepared by the Corporation Counsel after an inquiry into the facts
and a determination of the legal basis for the petition. If the Director of Social Services
has refused to recommend the filing of a delinquency petition, or the Director of the
[Child and Family Services Agency] has refused to recommend the filing of a neglect
petition, the Corporation Counsel, on request of the complainant, shall review the facts
presented and shall prepare and file a petition ifhe believes such action is necessary to
protect the community or the interests of the child. Any decision of the Corporation
Counsel on whether to file a petition shall be final.
The scope of this statutory provision was at issue in In reJ.J.z., 630 A.2d 186,191 (D.C. 1993),
cert. denied, 511 U.S. 1072 (1994). In this case, which was a consolidated appeal of two different
cases, the Corporation Counsel filed neglect petitions for several minor children, but moved to
dismiss the petitions in one of the cases pretrial based upon its good faith determination that its
proof was insufficient to sustain the charges. The guardian ad litem opposed this motion,
contending in part that both the court and the guardian ad litem have a parens patriae
responsibility to ascertain and act in the best interest of the children in spite of the government's
decision not to proceed.
The D.C. Court of Appeals ruled that the statutory scheme, as reflected in D.C. Official Code
§§ l6-2305(c), "clearly shows that at least the initial decision to file neglect petition rests
exclusively with the District through its Corporation Counsel, who has wide discretion in making
that determination ... " Id. at 191. The court noted that "[t]he extent to which others may
participate in initiating [a neglect petition] is specified and limited by statute."} Id. at 190. The
court also ruled that:
the prosecutorial function explicitly reserved to the Corporation Counsel by statute,
supports the implicit, concomitant authority of the designated governmental official to
exercise discretion in determining prior to trial whether to proceed with any petition
which he deems to be unsupportable.

Id. at 192. The court further noted that "the Rules of Professional Responsibility preclude an
attorney from knowingly advancing a claim unsupportable by existing law, absent a good faith
argument for its extension, modification, or reversal.,,2 Id. at 193. Finally, the court observed
that:
I The abuse and neglect statute was amended recently to create a statutory role for the Director of the Child and
Family Services Agency in conducting the preliminary inquiry into a complaint alleging neglect and in deciding
whether the best interests of the child or the public require that a petition be filed. See § 3(a)(2) and (3) of D.C. Law
13-277, effective April 4, 2001, the "Child and Family Services Agency Establishment Amendment Act of 2000".
Significantly, the statute retains the final decision-making role of the Corporation Counsel with respect to the filing
of neglect petitions.

The court cited Rule 3.1 of the D.C. Rules of Professional Conduct ("RPC"), which states in part:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a
basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification
or reversal of existing law ....

It also cited DR 7-102(A)(2), now codified as Rule l.3(a) of the RPC, which states that "[a] lawyer shall represent a
client zealously and diligently within the bounds of the law."

[i]n neglect proceedings, both the court and the Corporation Counsel have aparens
patriae role which requires each to act to assure the best interest of the minor child at
every stage of the proceeding. 3
Id. at 194. Based on the foregoing, the court concluded that the Corporation Counsel's motion to
dismiss must be granted even over the objection of the guardian ad litem where the motion is
"based on insufficient evidence" and "in the absence of an objection based on a lack of good
faith." Id. at 193.

In the second case that was part of the appeal inJ.J.Z., supra, the Corporation Counsel had
moved the trial court to dismiss the petitions, not based upon a good faith belief that the evidence
was insufficient, but due to a belief that the parent had been rehabilitated subsequent to the filing
of the petition. The D.C. Court of Appeals ruled that in this case the trial court must not defer to
Corporation Counsel's prosecutorial discretion, but must make an appropriate inquiry, including
an evidentiary one if necessary, to determine whether the best interests of the child will be served
by dismissal. Id. at 187. Thus, for decisions not based on the sufficiency of the evidence, the
Corporation Counsel is not vested by statute with exclusive decision-making authority.
In light of the above, I conclude that it would violate the present statutory scheme if a
government official or employee other than an attorney employed by the Corporation Counsel
makes the final decision with respect to the filing and dismissal of neglect petitions where the
attorney's decision is based on a good faith belief regarding the sufficiency of the evidence. In
making these decisions, the attorney in acc must make "an inquiry into the facts and a
determination of the legal basis for the petition", including whether the filing of the petition is
"necessary to protect ... the best interests of the child." See D.C. Official Code § 16-2305(c). The
attorneys in acc shall be guided in making these decisions by the relevant caselaw and the
protocols developed by acc for the preparation of the petitions.

For filing and dismissal decisions based on other grounds, or for other decisions relating to the
neglect proceeding that do not raise purely legal issues, it would not violate any statutory
requirement for a government official or employee other than an attorney employed by acc to
make these decisions. 4 Ifit is necessary to advocate these latter decisions in court, the attorney in

3 This language suggests that the Corporation Counsel is acting in a broader role in neglect proceedings than in other

matters where the attorney is representing the interests of a government agency or employee only, making the issue
of exactly who the government lawyer is representing in these cases less than clear. The D.C. Rules of Professional
Conduct do not specifically address to whom the lawyer's responsibilities are directed in this unique role. In
comment 7 to Rule 1.13 of the RPC, which identifies who the lawyer represents when employed or retained by an
organization, the D.C. Bar observed that "[b]ecause the government agency which employs the government lawyer is
the lawyer's client, the lawyer represents the agency acting through its duly authorized constituents". The attorneys
responsible for filing and prosecuting neglect petitions are employed by the Office of the Corporation Counsel and,
thus, this rule sheds no further light on the issue. If there is a disagreement between the attorneys and the staff of the
Child and Family Services Agency with respect to any decision relating to an abuse and neglect case, the
Corporation Counsel and the Child and Family Services Agency have agreed to a dispute resolution process that
shall be followed to resolve any disagreements between the staff of the respective agencies.
4 To the extent that any of these latter decisions require an expert opinion, the attorney would not be able to make the

decision without such opinion.
3

acc would be restrained only by the Rules of Professional Conduct, which preclude an attorney
from knowingly advancing a claim unsupportable by existing law absent a good faith argument
for its extension, modification, or reversal.

Interim Corporation Counsel, D. C.

(AL-Ol-750; MID 43943)